The Basic Law was drafted as part of the Sino-British Joint Declaration covering Hong Kong after its handover to China on July 1, 1997. The joint declaration stated that Hong Kong would be governed under the principle of ‘one country-two systems’ and would continue to enjoy its capitalist system and individual freedoms for 50 years after the handover.

About 100 protesters march from the Wan Chai Immigration Tower to the government headquarters to mark the 13th anniversary of a reinterpretation of the Basic Law in 1999. Photo: David Wong

Hong Kong's rule of law is facing yet another serious challenge. After months of speculation, the government revealed how it intends to resolve the right of abode disputes involving foreign domestic helpers and mainlanders giving birth here. In a disturbing move, it is asking the Court of Final Appeal, before ruling on the maid case, to seek a clarification from the National People's Congress Standing Committee on its interpretation of the abode provisions in the Basic Law in 1999. The request, if accepted by the city's top court and, subsequently, the standing committee in Beijing, will not just put an end to the helpers' fight for permanent residency. It may also effectively overturn the court ruling 11 years ago confirming the right of abode for babies born to mainlanders in Hong Kong.

The move is highly controversial in that the issues concerned do not seem to fall outside the city's autonomy and warrant Beijing's intervention. That the government is seeking to settle the eligibility of two different groups of people in one court case is also open to question. More worryingly, the clarification being sought may be seen as asking judges to admit they were wrong not to take the 1999 interpretation regarding a Preparatory Committee's report on the legislative intent of the abode provisions as binding. Worse, if a report by a political body after the Basic Law has been promulgated becomes legally binding, it may set a dangerous precedent.

Secretary for Justice Rimsky Yuen Kwok-keung argues that the request will not undermine judicial independence and the rule of law, saying it is handled within our judicial system. Arguably, in a legal battle, the government is entitled to put forward its argument like other appellants. After all, it is up to the court to decide, after considering all the arguments put forward by the parties concerned. But it would not be surprising if the government is seen as putting undue pressure on judges in such case.

For many local residents, a request for Beijing's interpretation may be a convenient solution to stop maids and mainlanders from sharing the same rights and benefits. But the rule of law is not made for the convenience of the majority. The judiciary has the duty to protect legitimate rights of individuals and ensure the government is acting on the right side of the law. It is imperative for the top court to consider carefully whether the clarification is a right step to take within the law.

This article appeared in the South China Morning Post print edition as Worrying twist on right of abode

jpinst
“ANY judgement from ANY court in Hong Kong
risks having a final settlement
made outside the legal system in Hong Kong”?
Don’t be ridiculous
Every flu, H5N1 avian and haemorphrage?
The only risk is that of irrelevant hyperbolisation
99.999999% of the court cases are welfare for the legal professsion
As regards the 0.000001% and common law,
like I asked this morning –
Edward Coke:
"The common law protecteth the King"
James 1:
"The King protecteth the law, and not the law the King!”
Which common law and so what?
Law of the wise in good faith is secular, socio-econo-political and flexible
Law of the fool in pretension is inflexibly servile, hyperbolic and metaphysical
Or, vise versa, if you prefer.
Silly kids in infatuation think the world ends
when their pals go away for summer holiday
But let’s see how many “foreign” investors will leave because of Beijing’s interpretation(s) of BL
It will only help HK’s continual prosperity
and growing sophistication.

lucifer Dec 14th 20128:25am

If the government does not like the court's rulings, it can always act to change the law. There are means to do so; Using the Standing Committee to bypass the CFA literally means the death of Common Law in Hong Kong. To have an extra legal legislative body in another jurisdiction usurp the power of final adjudication from the courts in Hong Kong, means that ANY judgement from ANY court in Hong Kong risks having a final settlement made outside the legal system in Hong Kong. I hope they realize how much damage they are doing……..

mcheung Dec 14th 20128:12am

"But the rule of law is not made for the convenience of the majority." Don't agree with this statement. The rule of law should be made for the convenience of the majority while protecting individual rights at the same time. This is the fundamental of democracy, Majority rules However, the individual rights of a majority number of citizens should override the individual rights of just a few people.

That's not how democracy or rule of law works. You must have been education in a jurisdiction North of Hong Kong i presume.The government makes the law, if the courts are left to interpret what the government did not clarify, then the court's interpretation is what will be the definition of the law. If the government does not like it, they can change the law. There is no such provision to "respect the rights of the majority" implied in either. Nonetheless, although we do not have democracy in Hong Kong, even if we did, a democratic majority does not imply that the tyranny of a mob rules, simply because they are the majority. its the courts and rule of law that keep them in check. The legal system is not a salad bar, you can't just pick and choose what you want while throwing back with you don't want. Its all encompassing and must be respected in its totality, otherwise the system fails.

That's not an unusual view for HK people, unfortunately. And it is just as divorced from reality as in the mainland. How sad that somebody might believe that laws are written for the benefit of some majority even as they work to pay one of a handful of tycoons for the privilege of living in their housing development, shopping at their grocery store, drawing power from their electric generating facility and power grid, riding their bus service, etc.

mcheung Dec 14th 20128:04am

"More worryingly, the clarification being sought may be seen as asking judges to admit they were wrong not to take the 1999 interpretation regarding a Preparatory Committee's report on the legislative intent of the abode provisions as binding."
To err is human, and judges are human too. I don't see anything worthy of worrying for the judges to admit they were wrong if indeed they were wrong then. Stop using "Judicial Independence" to cover up mistakes and arrogance.